Challenging a Will

The Court is always anxious to give effect to the wishes of those who have made a Will, provided that it is satisfied that there is sufficient record or proof of those wishes.

Despite this general stance adopted by the Court, the death of a person may still give rise to many possible claims including an action contesting the will of the deceased: collectively known as probate claims. 

“(a) “probate claim” means a claim for:- 

(i) the grant of probate of the will, or letters of administration of the estate, of a deceased person;

(ii) the revocation of such a grant; or

(iii) a decree pronouncing for or against the validity of an alleged will;  

not being a claim which is non-contentious (or common form) probate business” (Civil Procedure Rules r.57.1(2)). 

Generally, most probate claims are concerned with challenging a will and are usually based upon a common range of grounds. Such grounds include: 

1. Lack of testamentary intention;
2. Lack of due execution;
3. Lack of testamentary capacity;
4. Lack of knowledge and approval;
5. Undue influence;
6. Fraud and forgery; and
7. Revocation. 

Claims to contest a will have become more prevalent as a consequence of many legal and social changes, such as the lengthening of life expectancy which has increased the occurrence of persons executing their will amidst suspicion of their failing mental capacity. 

The facts and circumstances which may give rise to a legitimate cause for concern in relation to a deceased’s will are numerous and varied. It is quite common for the concerning circumstances surrounding the preparation and execution of a particular will to cross over between two or more of the grounds for challenge as set out above.  

Other actions commonly labelled as contentious probate claims are as follows: 

1. Disputes arising during the administration of an estate (for more please see ‘Factsheet-Claims Against Executors’);
2. Rectification of a will post death in order to carry out the deceased’s true intentions;
3. Construction (or interpretation) of a will in order to give effect to the intention of the deceased;
4. Claims against professional will draftsmen, including negligently drafted wills.  

For information concerning claims under the Inheritance (Provision for Family and Dependents) Act 1975, please see our separate factsheet titled ‘Factsheet-Inheritance Claims’. 

Should you wish to have a free initial telephone consultation in order to discuss your particular matter relating to this area, please call us on 01384 410410 and ask to speak to Susan Ford or Liam Owen. Alternatively, you can e-mail us your enquiry at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues, along with your contact details or, if you prefer, you can use the online enquiry form, and we will contact you for an initial free telephone consultation.

Advisory Note

The contents of this note are a brief summary of the principles relating to this topic and are not to be treated in any way as comprehensive advice for any particular matter. Each matter will turn substantially on its own facts and specific legal advice should be obtained in each case.